Open Science for Arts, Design and Music/Guidelines/Copyright in Switzerland

In italiano

Each country regulates copyright through its national legislation, which in Switzerland is named Federal Act on Copyright and Related Rights, CopA, whose latest revision entered into force April 2020. Nevertheless, there are also several regulations on international level, such as the Bern Convention for the Protection of Literary and Artistic Works (1886), which is also the first act with the aim of harmonizing copyright principles at international level, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), the WIPO Copyright Treaty, WCT (1996) and the WIPO Performances and Phonograms Treaty, WPPT (1996), to name but a few.

Overview of copyright

Copyright, an overview
The purpose of copyright	Copyright laws limit how others can access and use an original work. Copyright protection adopts an ‘all right reserved’ default approach that limits the right to copy and adapt the work by an author. The justification for copyright is twofold: Utilitarian: copyright encourages creators to create new works by means of social benefits – e.g., economic gains; Author’s rights: copyright encourages creators to create new works by ensuring attribution and preserving the integrity of original works. These two rationales for copyright mirror the exclusive rights granted by it: Economic rights: copyright holders have the right to earn financial gain from the use of their works by others. This includes the right to make copies and adaptations of the original work; Moral rights: copyright holders can take action to protect the connection with their creative output. This includes the right of paternity and the right to protect the integrity of the work.
Copyrightable works	Once created, any literary or artistic work that meets certain standards of originality is automatically protected by copyright. Ideas and facts are not copyrightable in themselves, only their expression is. Copyrightable works can follow into various and broad categories: among other, literature, music, visual arts, performance, cinema, translations, adaptations, databases and software. In some country (e.g., the USA) the granting of copyright follows the fixing of the original work in a tangible medium.
Copyright holder	Only the copyright holders has the authority to grant permission to use and adapt a copyrighted work. The creator of the work is the first copyright holder. Eventually, the exclusive rights granted by copyright can be transferred to others. Under certain circumstances, the author may not own the copyright of their own work. This is the case, for example, with employers who might own the copyright of works created by employees. In case of co-creation, the copyright ownership is joint.
The lifetime of copyright	Copyright is automatic: as soon as an author creates an original work, copyright protects it. The duration of the exclusive rights that are granted by copyright lasts a long time and it can protect an original work well after the death of its creator. 50 years post-mortem is the minimum term of copyright protection.
Exceptions and limitations to copyright	Exceptions and limitations permit the use copyrighted work under certain circumstances without infringing copyright. The rights of the public underpin the built-in limitations and exceptions to copyright that allow some uses of copyrighted works without permission. Public interest can limit copyright protections especially when this is considered against public rights such as the freedom of speech, the right of education and that of equality of access (such as by people with disabilities). Every country has its own exceptions and limitations within its copyright system. In most parts of the world, exceptions and limitations to copyright allow the use of copyrighted content for purposes such as criticism, parody and access for the visually impaired. In the United States the decision as to whether the use of a copyrighted work can be considered a “fair use” depends on the following four factors: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount of the work used in relation to the size of the copyrighted work as a whole and 4) the effect of the use upon the potential market. Compulsory licensing schemes permit specific uses of copyrighted works without any need to ask for permission as long as a non-negotiable fee is paid to the copyright owner.
Other types of intellectual property	Copyright is only one type of intellectual property, namely the author’s right to restrain others from using and adapting their work. Trademarks and patents are the two main alternative types of intellectual property. Trademark law allows the identification of the producers of goods and services, as such it helps producers protect their reputation and the public differentiate between similar products and services. Patent law provide inventors with a temporary monopoly to their inventions. Design patents, geographical indications, trade secrets and confidential information also are types of intellectual property.
Public Domain	Works in the public domain can be freely shared, copied and adapted by everyone for the are not protected by copyright. A work enters the public domain under the following circumstances: The copyright has expired; copyright protection does not last forever. Sooner or later, depending on copyright laws, works fell out of copyright and enter the public domain. Not-copyrightable works: the work falls outside the scope of copyright and thus was never granted protection in the first place; CC0: the creator gives up copyright and puts their work in public domain. The Creative Common licence CC0 can be used by creators to forego copyright protection. The copyright holder did not meet the formalities to obtain and keep their copyright. In some cases, the reuse of works in the public domain requires the user to take into account certain considerations or restrictions. For example, one should be aware that crediting the author is legally required in countries where moral rights don’t expire. When dealing with indigenous cultural heritage and traditional cultural expressions that are in the public domain, it is recommended to consult the communities that are their custodian before using them. Users of works in the public domain might also face ethical considerations when dealing with morally sensitive public domain works. That is, for instance, the case with privacy issues, human remains or depictions of dead bodies and violence.

What is protected by copyright

According to Federal Act on Copyright and Related Rights, CopA (as to international regulations and other countries' laws), to be considered protected by copyright, the work must fulfil the following 3 conditions:

• be made by a human being (for example, a surveillance video made by an automatic machine or a photo captured by an animal is not protected by copyright);
• be perceivable to the senses (readable, listenable, watchable);
• be original, (also called "individual character"). The interpretation given by the jurisprudence of what is original and what is not original may differ from country to country and must be evaluated on a case-by-case basis. Since April 2020, the new CopA grants copyright protection also to photos of three-dimensional objects lacking of originality (such photos may be press photos, profile photos, family photos, or an ordinary photo of an object on sale for example). Quality or value do not have any influence on whether something is considered a work or not. A simple drawing made by a child is protected in the same way as a painting of a famous artist. Also uncompleted works or drafts might already be protected.

Duration, according to the Swiss CopA and to the Bern Convention: copyright protection starts automatically from the moment a work is created (there is no need of registration or any kind of procedure) and, for most kind of works, it lasts until 70 (50 for computer programs) years after the author's death; photos lacking of originality are only protected for 50 years from the moment of capture (or of publication if the photo has been published), independently from the photographer's life. After this time period the work enters into public domain. Certain countries foresee different length. E.g. a book written by an author that passed away in 1955 will enter the public domain in Switzerland and countries with same provision in January 2026.

Moral rights and economic rights

Copyright can be divided in two groups of rights (not always perfectly distinct one from the other): Moral rights protect the core of the author's personality and cannot be transferred to third parties. They consist of right to attribution (recognition of authorship): this is the right to be always mentioned as the author of a work; right to 1st publication: the author is the only person that may decide whether, when and how to publish his work for the 1st time; right to integrity of the work: the author is the only one entitled to decide whether, when and how the work may be modified may be included in a collection; Economic Rights (also called "Property Rights"), which are about whether, when and how a person can exploit a work, either digitally or physically and they can be transferred to third parties (totally or partially) by contract, by law or by institutional regulations. Copyright agreements, publishing contracts and licenses always regulate economic rights of a work, such as its reproduction, distribution, modification, adaptation, sharing, access, availability on a specific website, ect. The author may either assign economic rights to a third party (e.g. the employer or the publisher) through a copyright contract or only grant someone permission to use the work through a license (without transferring ownership), e.g. a Creative Commons license. The rights transferred/granted are only the ones mentioned in the agreement (is it a contract or a license). Moreover, as per art. 381/1 Swiss Code of Obligations, the author transfers only necessary rights for the purpose of the contract (e.g. when entering into a publishing contract, if not otherwise stated, the author transfers to the publisher only the rights needed for the publication; therefore, if the publication is considered in one only language, the publisher is not allowed to translate the work and distribute its translations). More specifically, through a contract two or more subjects enter into a binding arrangement with the intent to create a legal relation. In the context of Copyright, this happens when someone needs to use a protected work but is restricted by the law, and thus enters into a legal relation with the right holder of the work by finding an agreement that satisfies both parties. A contract thus allows a person to use a work/dataset without the risk that the right holder objects against the use. A user is interested in getting permission to use a work/dataset while the right holder is interested in keeping control over their own works and on how other people exploit it, possibly in exchange for monetary compensation. Copyright law doesn’t require a specific form of contract for that agreement to be valid. Even an oral exchange of intentions would be enough, but for evidence purposes in case of misunderstanding and further controversy, it is always better to define and write black on white all the details of the agreement. A written document makes it easier to prove what has been agreed upon. However, an email, which lists all relevant aspects/details should be enough, but also in this case it is even better when these details are written on a separate document and signed by both parties. Copyright contracts that authorise and regulate the use of a work are the so-called “licenses”. In certain cases economic rights are being transferred to somebody by law, regardless of the author's will (for example, art. 31 of the Law for the organization of public employees and teachers of Canton Ticino (Switzerland) assigns to the cantonal authority all intellectual property rights - including copyright - of works created during the employee's activity or service obligations).

The right holders of a work are entitled to publish/share their work/data under a license (which should always be attached to the work). By doing so, they grant someone the right to use the object in a certain way. A license may be addressed to an unspecified range of people (potential users), defined by the license itself (in this case we talk about pre-defined licenses), or to a specific person (then we usually speak about specific license agreements). Who uses a work released under a license is only a user, and does not own any rights over the work in question. Creative Commons Licenses (CC) are an example of pre-formulated/pre-defined license contracts under which a right holder can decide to proactively share their work/data with others. At the following link you can find a description of all Creative Commons Licenses: https://creativecommons.org/about/cclicenses/. Within this tool, CC Licenses are described extensively in the “Share your Research Data Branch” (nodes “I have the rights to do so”, “Publish Research Data as Open Access”, etc.) Getting the author’s permission is another way of setting up a license. The only difference to pre-defined licenses is, that they are addressed to a generic public/anyone, while a license agreement is only between you (or a restricted circle of people) and the right holder. In this case you probably got in contact with the right holder, discussed with them and agreed upon some specific usage aspect (which usages are permitted within which limits). A specific license agreement differs from a pre-defined license like for example Creative Commons Licenses, with regard to audience, contents and format: a pre-defined license is generally addressed to the public at large, while a specific license agreement is elaborated between two or more defined parties. Furthermore, pre-defined licenses tend to be more generic in order to address various situations, while a specific license agreement might be formulated to meet your exact, specific needs. A specific agreement usually has the form of a contract that is signed by all involved parties, while pre-defined licenses are accepted simply by using the work/data in question.

For example if a work is used only for a specific event/occasion (e.g. a specific webinar), a specific license agreement will be stipulated. Whereas for a general usage of the work, with no limits of time or of purpose (apart from commercial/non-commercial), a predefined license would better suit.

Rights holders and owners of copyright

“Right holders” or “owners of the copyrights” of a work are those people who own one, some or all economic rights of the work. This means that there may be multiple right holders of a specific work. Right after the creation of a work the author is automatically also the right holder of the created work. If the author transfers some rights, they remain right holders of the rights retained while the other person/entity is the right holder related to the assigned rights (for example a writer of a text enters into an agreement with publisher A assigning them the rights to edit and publish the text on a specific journal: in such case publisher A is the right holder of their published work while the author still holds the not-assigned rights, thus having the possibility to translate the text and publish the translation through publisher B, as long as it's a different version not entering into unfair competition with Publisher A). But if the author transfers all rights s/he no longer is right holder (and is no longer able to decide about the exploitation of the work, now needing the right holder's permission). The right holder is the only one entitled to decide about the future use of the work.

The core principle of intellectual property is the right holder's exclusive right to their work, which means the right to decide whether, when and how their work is used by others. According to Swiss copyright legislation, this principle is set in artt. 9 and 10 CopA and attributed to the author; however, if their copyright are assigned to a third party, such as the employer or an institution, the latter becomes the right holder, entitled of the exclusive right. In the meanwhile, everybody is entitled of freedom of expression - which includes freedom of arts and is guaranteed by all democratic states constitutions and many international acts protecting human rights-, which can only be exercised through the right to re-use already existing works protected by copyright. In between, National and international copyright laws aim at finding "[a] fair balance of rights and interests between the different categories of right holders" (Recital 31 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society). The economic rights can be transferred by contract, by law or by institutional regulations. Licenses, such as Creative Commons licenses, do not transfer rights but only grant permission(s) for specific usage(s) of the work.

Public interest and the exceptions

Copyright is not absolute: there are certain situations in which the public interest allowing users to benefit from an existing work prevails over the author's exclusive right, the so-called exceptions foreseen by copyright law. If the use of a work falls into the limits of an exception, the user is not required to obtain the right holder's permission. Moreover, the right holder cannot prevent the user from using the work as permitted by an exception. Some of the exceptions foreseen by the Swiss Copyright Act are:

Right to parody (art. 11/3 CopA), which permits the use of existing works for the creation of parodies or other comparable variations on the work, provided that the character of parody and critics is understandable.

Exception for private use (art. 19/1/a CopA), which allows to use data within a circle of persons closely connected to each other (e.g. close friends, family members, flatmates). This exception is considered in a very restrictive way: Facebook “friends” for example are not included in the circle of closely connected people.

Exception for education purpose (art. 19/1/b CopA), for protected content used within the context of a lecture/class (content can be modified and mainly, only an excerpt can be shared).

Exception for use within a company (art. 19/1/c CopA), allowing you to share protected content only with colleagues working within your same institution (mainly, only an excerpt can be shared).

Use of orphan works (art. 22b CopA), which permits the reproduction of works when its right holders "remain unknown or cannot be found following an appropriate research effort", provided that such usage is notified to the corresponding Collective society (e.g. Prolitteris).

Archive and backup copies (art. 24 CopA), which permits in particular public and publicly accessible libraries, educational institutions, museums and archives to make copies of works that are extremely rare and with big value, to secure and preserve their collections insofar as these copies are not made for financial or commercial gain; only one of the copies can be made accessible to the public: either the original or its copy (which could be digital).

Temporary Copy (art. 24a CopA), which simplifies the use of works in the era of new information and communication technologies.

Exception for Data Mining (art. 24/b CopA), which allows researchers to use protected content, if legally available, for methodologies/practices made possible thanks to the use of new digital technologies (e.g. data mining or data scrapping, the practice of analyzing large databases in order to generate new information).

Right to quotation (art. 25 CopA), which allows the reproduction of a protected content within a work for the purposes of quotation, provided that the content to quote serves as reference, comment or demonstration of what stated in the quoting work. Moreover, only the amount of the work necessary as reference or to demonstrate can be quoted (not the entire work), which means that as soon as the purpose of reference, comment or demonstration is achieved, the extent of the quoted work comes to the end. Quoting a full work would be justified if there is no other means to process it differently, thus cutting the quoted work to extract from it an excerpt would break its own meaning, however, this interpretation is not shared by other countries. Meanwhile, the quotation cannot hamper the economic exploitation of the quoted work, nor can it violate the author's legitimate interests.

Works on premises open to the public (art. 27 CopA), according to which "[a] work permanently situated in a place accessible to the public may be depicted; the depiction may be offered, transferred, broadcast or otherwise distributed"; "[t]he depiction may not be three-dimensional and it may not serve the same purpose as the original".

Reporting current events (art. 28 CopA), according to which, "for the purposes of information about current affairs, short excerpts from press articles or from radio and television reports may be reproduced, distributed, broadcast or retransmitted".

In any case, according to the law and to the good scientific practice, it is mandatory to always give proper attribution when re-using a work. If none of these exceptions apply on a specific situation and the work has not been released under a pre-defined license, the user must ask the copyright holder permission and enter into a license agreement in order to lawfully use the work.

Copyright in Switzerland related to books

In Switzerland a book is protected by copyright until 70 years after its author's death (or of the last author, if several joint authors created the book). A translation of a book is protected until 70 years after the translator's death.

A book can be considered a collection of works, when it collects contributions, chapters or articles that are distinct one from the other. In this case each chapter is protected as such beside the book which is protected as a collection, if there is an individual character in the selection and structure of the contents put together.

• In case of joint authors, all of them must agree on how to use and where to publish the work.
• When the publisher can be considered joint author because of their relevant contribution in the project of the work, by setting up a precise structure, art. 393 CO assigns to the publisher the copyrights of such work.
• According to art. 382 of the Swiss CO, the author has the right to second publication of their contribution after 3 months from such publication. However, since this is not mandatory law the agreement concluded between the author(s) and the publisher may lay down different provisions, such as a longer embargo.

Copyright in Switzerland related to education material

Educational material can be any type of work protected by copyright: text, images, videos, charts, a collection of works, ect., and copyright rules apply accordingly.

Copyright in Switzerland related to data and databases

A data itself, as raw data, which corresponds to a mere fact of nature such as a formula, an algorithm, a temperature, an information, is not protected by copyright and has no ownership. To date, it is not legally possible to own data like owning any material good. In fact, the legal nature of a data is controversial, majority of the doctrine stating that non physical goods cannot be subject to property rights, in contrast with other authors who consider data as res digitalis, thus amenable to property rights.

What is subject to copyright is the form of expression the author gives a data, if such form of expression has originality (link to copyright requirements), whereas the logic or concept behind the form of expression given to it is not protected by copyright. For this reason, for instance, copying a chart (without permission and without fitting into one exception) is a violation of copyright, while creating a different chart with the same concept/logic is not a violation of copyright.

Regarding the character of originality: a list, a chart, a diagram, a scheme composed of data made by a person is protected by copyright if there is originality in the selection of data and in the way data are filled in the list/chart or in the way the chart is portrayed; whereas for instance a list of data organized alphabetically is not protected, because it lacks originality.

Regardless of the form of the individual data and pursuant to art. 4/1 Swiss Copyright Act, a database is protected by copyright if there is originality in its structure and in the selection of data composing it. The Swiss legislation differs from the European one, the latter setting a sui generis right that protects a database "which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents", even if it lacks originality. However, if a database may benefit from a certain kind of protection, the individual data (if not expressed in an original form) is not subject to ownership, neither of intellectual property rights, nor of civil property.

Copyright in Switzerland related to software

Even if a software is not an immaterial good, on the international level, a computer program is protected by copyright when the source code written by a person is considered a literary and artistic work within the meaning of article 2 of the Berne Conventionfor the Protection of Literary and Artistic Works, more specifically, the code must have the required individual character. In Europe, software are protected by the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs. On the Swiss level, a computer program may be protected by copyright as set forth in art. 2 para 3 CopA. However, it is possible for a computer program to be (also) patentable, if the invention and the software in it produce a technical effect. As for any kind of work, as soon as the computer program is created and the individual character can be recognized, it is automatically protected by copyright.

There are different interpretations and controversies about what is considered being a software protected by copyright; mainly, the Swiss doctrine takes as a reference the Copyright Act of the USA, whose §101 states that "A computer program is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result". Because copyright only protects an expression, not the idea itself, copyright protects the written expression of the computer program (source and object code), but not the idea behind, thus not the output expected by the machine. Therefore, several software may be written differently and in the meanwhile have the same output, without infringing one another's copyright.

A computer program can be developed upon a traditional model, according to which its exclusive right is protected by a proprietary license so that a user must pay a fee to be able to use the computer program. Otherwise, a computer program can be licensed under an open license, permitting its reuse and adaptations. Hence, software can be licensed under a Creative Commons license or under a Free and Open Source Software (FOSS) license, the latter being more suitable for computer programs, granting users "freedom to run, copy, distribute, study, change and improve the software".